United States v. Evans

122 F. Supp. 3d 1027, 2015 U.S. Dist. LEXIS 105384, 2015 WL 4711148
CourtDistrict Court, D. Nevada
DecidedAugust 7, 2015
DocketNo. 3:13-CR-00079-LRH-WGC
StatusPublished
Cited by6 cases

This text of 122 F. Supp. 3d 1027 (United States v. Evans) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Evans, 122 F. Supp. 3d 1027, 2015 U.S. Dist. LEXIS 105384, 2015 WL 4711148 (D. Nev. 2015).

Opinion

ORDER

LARRY R. HICKS, District Judge.

This case involves a traffic stop that led to the arrest of Defendants James Evans (“Evans”) and September McConnell (“McConnell”), and subsequent charges for conspiracy to distribute five grams or more of methamphetamine, possession with intent to distribute, and carrying a firearm in relation to a drug trafficking crime. Following an evidentiary hearing on December 20, 2013, the Court granted Evans’ Motion to Suppress, finding that the traffic stop was unreasonably prolonged for purposes of the Fourth Amendment. The United States appealed, and on May 20, 2015, the Ninth Circuit Court of Appeals found that the traffic stop was unreasonably prolonged, and remanded for a determination of whether independent reasonable suspicion existed to justify prolonging the stop to conduct the ex-felon registration check and dog sniff.

The parties submitted memoranda presenting their arguments regarding independent reasonable suspicion on July 6, 2015 (Doc. # 1061; Doc. # 107), and replies on July 13, ,2015 (Doc. # 108; Doc. # 109). The Court has considered the Ninth Circuit’s opinion, and all evidence and briefing before the Court, and finds that no independent reasonable suspicion existed to justify prolonging the traffic stop beyond the constitutional limits of the Fourth Amendment as described in Rodriguez v. United States, — U.S. -, 135 S.Ct. 1609, 1615, 191 L.Ed.2d 492 (2015).

I. Facts and Procedural History

Throughout 2012 and 2013, the Drug Enforcement Administration (“DEA”) task force in Reno, Nevada, collected evidence from jailhouse sources that Evans was distributing methamphetamine in the Reno and Sparks area. This information led Detective Blaine Beard (“Beard”) of the Washoe County Sheriffs Department to obtain authorization from a state court judge to track the location of a cell phone that Beard believed Evans used for drug activities. On July 22, 2013, cell phone data indicated to Beard that Evans was leaving Nevada traveling westbound. Later that night, cell phone data indicated [1031]*1031that Evans had stopped at a Super 8 Motel in Sacramento, California. Early the next morning, Beard contacted Washoe County Sheriffs Deputy Brandon Zirkle (“Zir-kle”), who he had known for “years,” and informed Zirkle that he believed Evans was traveling from California with narcotics along Interstate 80 (“1-80”). Zirkle is canine-certified and had his drug detection dog “Thor” with him that day. Beard requested' that Zirkle position his vehicle ¿long 1-80 and pull Evans over once his vehicle passed Zirkle’s location. Beard specifically requested that Zirkle “develop [his] own probable cause,” in order to keep the traffic stop separate from the DEA’s ongoing investigation,2 Based on this information, Zirkle parked his vehicle on the Nevada side of the California-Nevada border on 1-80' and waited for Evans. At approximately 6:37 pm, DEA officers observed Evans’ vehicle traveling eastbound on 180 approximately forty-five minutes west of Reno. Beard informed Zirkle, who had been waiting near 1-80 for Evans’ vehicle for approximately eleven hours.

Soon after this alert, Zirkle identified the vehicle that had been described to him with the reported license plate number. Zirkle testified that he observed Evans change lanes in a manner that' caused the vehicle behind to apply the brakes, in violation of two Nevada traffic laws that prohibit unsafe lane changes and following a vehicle too closely. See NRS §§ 484B.223(l)(b), 484B.127(1). Zirkle effectuated a traffic, stop at approximately 7:09 pm. Zirkle approached the passenger side of Evans’ vehicle and requested his license and registration. Zirkle testified that as he approached, he smelled a “very strong odor of methamphetamine” from inside the vehicle. Zirkle asked Evans to exit the car, told him.that he was pulled over for making an unsafe lane change, and asked Evans where' he was coming from. Evans answered that he- was driving from Grass' Valley, California to Reno, Nevada. Zirkle patted Evans down for weapons and asked him to wait by the patrol car while he “checked some numbers.”- After conducting a check of the vehicle identification number- associated with Evans’ car, Zirkle asked Evans’ passenger McConnell for her identification. Zirkle testified -that he believed that McConnell was pretending to sleep, and that he detected signs of extreme nervousness, including shaking hands and a visible pulse in her neck. McConnell stated that she and Evans were traveling from California, where they had stayed with one of Evans’ friends.

At 7:13 pm, four minutes into the stop, Zirkle told Evans that he was not going to write a ticket, but that he needed to run a check for outstanding warrants before Evans could leave. While Zirkle was conducting the records check, Evans informed him that he had been arrested before and that he had past trouble with his license related to failure to pay child support. Around this time, Nevada State Trooper Jason Phillips (“Phillips”) arrived at the scene. At 7:20 pm, approximately eleven minutes after the stop began, the operator reported that the records check for' the car and Evans arid1 McConnell’s driver’s licéns-es came back clean.

Zirkle then .requested an ex-felon registration check, which entailed checking Evans’ criminal history and determining whether he was properly registered as a felon at the address provided. While waiting for the results of the ex-felon registra[1032]*1032.tion check, Zirkle asked Evans why McConnell told him that they, had stayed at a hotel, aware that this statement was false, in order to see if Evans’ story would stay consistent. Evans ■'responded that they had stayed at a motel in Sacramento before visiting a friend’s house in Grass Valley. At this point, Zirkle told Evans that he would be free to leave once he received the results of the ex-felon registration check. Speaking out of Evans’ earshot, Phillips told Zirkle that he, smelled a strong odor of marijuana coming from the car, but did not mention smelling methamphetamine. ,

At 7:28 pm, approximately nineteen minutes after the stop began, dispatch informed Zirkle that Evans had been convicted two times for .drug-related charges and that he was properly registered. Zir-kle gave Evans a warning, returned his license and paperwork, and told him “you’re good to go.” As Evans walked away, Zirkle asked Evans if he could ask a few more questions. Evans turned back to Zirkle, and Zirkle asked if he had any drugs in the car, mentioning marijuana, methamphetamine, cocaine, and heroin. Evans denied having any drugs in the car. Next, Zirkle asked for consent to search the car, which Evans refused.

Based on everything that he observed during the stop, Zirkle believed at this point that he had reasonable suspicion to conduct a canine sniff around Evans’ vehicle. The officers instructed. Evans and McConnell to sit on a rock away from the vehicles as Zirkle conducted the dog sniff. The canine “Thor” alerted to the odor of a controlled substance near the passenger door at approximately 7:33 pm, twenty-four minutes after the traffic stop began. A subsequent search revealed a double-bagged plastic bag containing methamphetamine and' small bags of marijuana and crack cocaine located inside a hard sunglass case in the console between the driver and passenger seats of Evans’ vehicle.

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Cite This Page — Counsel Stack

Bluebook (online)
122 F. Supp. 3d 1027, 2015 U.S. Dist. LEXIS 105384, 2015 WL 4711148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-evans-nvd-2015.